22:0082(8)AR - GSA Region 10 and AFGE Council 236 -- 1986 FLRAdec AR

 22 FLRA No. 8
 
 GENERAL SERVICES ADMINISTRATION, 
 REGION 10
 Activity
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, COUNCIL 236
 Union
 
                                            Case No. 0-AR-1051
 
                                 DECISION
 
                         I.  STATEMENT OF THE CASE
 
    This matter is before the Authority on an exception to the award of
 Arbitrator M. Zane Lumbley filed by the Agency under section 7122(a) of
 the Federal Service Labor-Management Relations Statute and part 2425 of
 the Authority's Rules and Regulations.
 
                  II.  BACKGROUND AND ARBITRATOR'S AWARD
 
    The dispute in this case was submitted to the Arbitrator pursuant to
 his continuing jurisdiction reserved in an earlier award concerning the
 appraisal of the performance of the grievant.  In that award the
 Arbitrator found that in appraising the grievant's performance for the
 period in dispute, the Activity had violated Article 19 of the parties'
 National Agreement which provides that the performance appraisal system,
 as applied, will be "fair, equitable, (and) reasonable." Pursuant to
 this finding the Arbitrator, in part, had ordered that the grievant be
 reappraised by management.  Accordingly, the Activity had reappraised
 the grievant and rated her overall as "highly successful." When the
 grievant disagreed with this rating, claiming that she deserved an
 overall rating of "outstanding," the continuing jurisdiction of the
 Arbitrator was invoked to resolve the issue of the propriety of her
 overall rating of "highly successful."
 
    The Arbitrator noted that under the parties' agreement, highly
 successful performance is defined as performance which "exceeds the
 performance standards for a given position 50% of the time or more" and
 outstanding performance is defined as performance which "exceeds the
 performance standards for a given position 85% of the time or more." The
 Arbitrator further noted that in her annual appraisal, the grievant was
 rated as exceeding the performance standards 50% of the time as to two
 of her job elements and as meeting the standards as to her other job
 element.  On review of this performance appraisal and the grievant's
 overall rating, the Arbitrator determined that the rating was arrived at
 arbitrarily.  Specifically, he ruled that there had not been a complete
 and reasonable review of all the factual information relating to the
 grievant's performance under the respective job elements as required by
 the agency handbook on the general performance appraisal system.  He
 further ruled that the appraisal contained numerous contradictions,
 misstatements of fact, assessments of fault which did not lie with the
 grievant, and references to performance occurring outside the period
 stipulated to and designated by the parties to serve as the basis for
 her appraisal for the two appraisal periods in question.  After
 discounting all of these components of the grievant's appraisal, the
 Arbitrator concluded that there was nothing in the appraisal of a
 negative nature and that consequently the grievant deserved and overall
 rating of "outstanding." Accordingly, as his compliance opinion and
 award, the Arbitrator ordered that the grievant be given a rating of
 "outstanding" for the two appraisal periods in question.
 
                              III.  EXCEPTION
 
    In its exception the Agency contends that the award is contrary to
 section 7106(a)(2)(A) and (B) of the Statute.  Specifically, the Agency
 argues that by supplanting management's assessment of the grievant's
 performance with his own evaluation, the Arbitrator contravened the
 principle enunciated by the Authority that an arbitrator may not
 substitute his or her judgment for that of management as to what an
 employee's performance evaluation and rating should be.  The Agency
 maintains that even if the Arbitrator effectively found that the
 performance standards had not been applied to the grievant fairly,
 equitably, and reasonably as required by the parties' agreement, there
 was no basis for the Arbitrator's conclusion that the grievant
 affirmatively met the standard necessary to achieve an outstanding
 rating.  In particular, the Agency maintains that the mere agreement by
 the Arbitrator with the Union's arguments disputing certain performance
 deficiencies contained in management's appraisal of the grievant's
 performance does not justify the Arbitrator's ruling that the grievant
 was entitled to have been rated "outstanding."
 
                       IV.  ANALYSIS AND CONCLUSIONS
 
    In Social Security Administration, Office of Hearings and Appeals,
 Region II and American Federation of Government Employees, Local 1760,
 21 FLRA No. 86 (1986), the Authority reviewed recent decisions
 discussing in detail the role of an arbitrator in resolving disputes
 pertaining to performance appraisal matters.  In these decisions the
 Authority had specifically advised that an arbitrator may resolve an
 employee's grievance claiming to have been adversely affected in his or
 her performance appraisal by management's application of the established
 performance standards.  The Authority had further advised that in
 resolving the grievance, the arbitrator properly may determine that
 management applied the established standards in violation of law,
 regulation, or an appropriate, nonquantitative review criterion, and the
 arbitrator to that extent may sustain the grievance.  The Authority also
 had stated that in sustaining the grievance, an arbitrator as a remedy
 may direct that the grievant's work product be properly evaluated by
 management or where appropriate that the grievant's work product as
 appraised by management be granted the rating to which entitled under
 the established elements and standards.  The Authority, however, had
 cautioned in these decisions that the arbitrator may not conduct an
 independent evaluation of an employee's performance under the elements
 and standards established by management and may not substitute his or
 her own judgment for that of management as to what that employee's
 evaluation and rating should be.  SSA, Office of Hearings and Appeals,
 slip op. at 4 (citing Bureau of Engraving and Printing, U.S. Department
 of the Treasury and Washington Plate Printers Union, Local No. 2, IPDEU,
 AFL-CIO, 20 FLRA No. 39 (1985);  Bureau of Prisons, Department of
 Justice and American Federation of Government Employees, Local 148, 21
 FLRA No. 15 (1986).
 
    Applying these decisions in SSA, Office of Hearings and Appeals, the
 Authority determined that the arbitrator was not authorized to determine
 that the grievant's case production would have been rated at least as
 "fully successful" but for the violation of the parties' collective
 bargaining agreement.  The Authority noted that management's appraisal
 of the grievant's numerical case production was based on the statistical
 determination of the grievant's average daily production and the rating
 of that production under the established standards.  The Authority found
 that this was not the type of appraisal that would permit an arbitrator
 in an objective, nondiscretionary, and essentially mechanistic manner to
 determine without an independent evaluation that an aggrieved employee
 was entitled to a different rating under the established standards.  In
 finding the award deficient, the Authority concluded that the
 arbitrator, in determining that the grievant's performance would have
 been rated higher, necessarily conducted an independent evaluation of
 the grievant's case production performance uner the established
 standards and substituted his judgment for that of management as to what
 the grievant's performance evaluation should have been.  The Authority
 contrasted this case to the Bureau of Prisons case in which exceptions
 were denied where the arbitrator had expressly examined the performance
 standards and regulatory definition of outstanding performance, had
 specifically evaluated the application of the standards to the
 grievant's performance as described in his performance appraisal, and
 had determined in accordance with the definition of outstanding
 performance and management's own appraisal of the grievant's performance
 that the grievant was entitled under the established standards to a
 rating of "outstanding" as to three of his job elements.
 
    In this case the Authority concludes, as it did in SSA, Office of
 Hearings and Appeals and in contrast to Bureau of Prisons, that the
 award is deficient.  As noted, management's appraisal of the grievant's
 performance was based on a determination of the percentage of time that
 the grievant's performance exceeded the established standards.  The
 Authority finds, similar to SSA, Office of Hearings and Appeals, that
 this is not the type of appraisal that would permit an arbitrator in an
 objective, nondiscretionary, and essentially mechanistic manner to
 determine without an independent evaluation that an aggrieved employee
 was entitled to a different rating under the established standards.
 Instead, the Arbitrator, in determining that the grievant deserved an
 overall rating of "outstanding," necessarily conducted an independent
 evaluation of the percentage of time that the grievant's performance
 exceeded established standards and clearly substituted his judgment for
 that of management as to what the grievant's performance evaluation
 under those established standards should have been.  Although the
 Arbitrator properly could have ordered the grievant reevaluated on
 finding that management's appraisal of the grievant was not in
 accordance with the agency's performance appraisal system and apparently
 Article 19 of the parties' agreement, the Arbitrator instead
 independently determined what that rating would have been.
 
                               V.  DECISION
 
    For these reasons, the Authority finds that the Arbitrator's order
 that the grievant be given a rating of "outstanding" is contrary to
 section 7106(a) of the Statute and the decisions of the Authority and
 must be modified.  Accordingly, the last sentence of the award, ordering
 that the grievant be given a rating of "outstanding" is struck and the
 following language substituted:
 
          Management shall reevaluate in accordance with the general
       performance appraisal system and Article 19 of the parties'
       National Agreement the grievant's performance for the period
       stipulated to and designated by the parties and shall apply that
       rating to the appraisal periods in question.
 
    Issued, Washington, D.C., June 6, 1986.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY